Why The Criminal Law Amendment Ordinance, 2018 Is A Shallow Step

The Kathua rape case has shaken the country and has compelled us to look for our humane identity. It was the height of monstrousness that reflected the bitter truth of the socio-political condition of today’s India. The protests were seen on the streets, on social media and on news channels throughout the nation.

Everyone was yelling at the top of their lungs and demanded justice either through capital punishment, or something worse than capital punishment. The public outcry was so much that the government came up with a quick judicial response to the case and saddled us with the Criminal Law Amendment Ordinance, 2018.

There are number of provisions added to the criminal law as part of the amendment and each provision can be debated separately. However, I want to centre my argument around 3 provisions out of which one has created a nationwide debate, that is, the application of the death penalty.

What about sexual assault against boys?

Let us now look at those three provisions of the Criminal Law Amendment Ordinance, 2018:

Minimum Punishment of 20 years rigorous imprisonment and maximum Death penalty/Life Imprisonment for committing rape on a girl aged below 12.

Minimum punishment of twenty years to a person committing rape on a woman aged below 16.

Investigation in rape cases to be completed within two months.

Why have I chosen only these three provisions, for now, will be clear when I go on to present my argument for each of them.

First of all, why is the amendment only identifying females as the potential victims of any form of sexual abuse or sexual violence? What about sexual assault against boys? Why are we not accommodating them?

There are enough accounts and evidence of sexual abuse inflicted on boys and men. Why does our judicial system consider females as the only vulnerable group – because of their age, and more so because of the gender? If they had to make an age-specific law against sexual assault, then at least take into consideration male minors as well, in order to be more inclusive.

The next provision which began the national debate once again is the granting of the death penalty for the said crime. Capital punishment is taking away someone’s life which is again inhumane. India is one of the few nations which has still not condemned capital punishment.

Research and past experiences clearly state that this has not deterred criminals from committing crimes. Probably what could actually deter criminals from committing crimes is a social change where deliberate efforts are made towards better and broader understanding of human values (and human life!).

The third provision which is debated here is the time limit put on the investigation of a rape case. Yes, this could mean a fast track response to the cases, but giving a specific timeline could also mean wrapping up the case as fast as possible. We could then run the risk of holding innocents guilty.

People’s Union for Civil Liberties argues that the whole process of putting people on the death penalty row is biased as well as arbitrary. What if it is only after the execution that we realise that the person was innocent. How do we undo this atrocity then?

We could run the risk of holding innocents guilty.

Why do we fail as a society to learn from such incidents? Nirbhaya happened, the Kathua case happened, the Unnao case happened, the Aruna Shaunbaug case happened and these are not the only cases. Then there are a number of such incidents which either go unreported or do not gain similar national attention. In most of these cases, the crime is driven by power dynamics.

Rape is a crime which is equally brutal for a person of any age or gender. Defining a specific punishment when a specific kind of victim is involved in the crime is an unjust and unrequired comparison amongst victims. That is why redressal of the whole culture of rape is necessary. Rather than just thinking on the linear lines of small girls being vulnerable because of their age and gender.

The casual sexism, stereotyping at homes and other social interactions is where all this starts from. People who commit such horrendous crimes do not come from some other place but from our very own societies. Social reform in education, social interactions, and the judicial system is required. Capital punishment is merely revenge by law and that cannot be a deterrent for criminals.

As adults, especially as women, we must call out patriarchy inside our homes. We need to take responsibility and make an ally of our mother.As adults, especially as women, we must call out patriarchy inside our homes. We need to take responsibility and make mothers our allies.

Kittur Chennamma, queen of Kittur, was an Indian ruler to lead an armed rebellion against the British East India Company. Even though her attempt failed, she was an inspiration for the upcoming freedom fighters.

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